STATE OF UTAH, Appellee, v. PAUL LAMBERT FLORA, Appellant.
No. 20170241
SUPREME COURT OF THE STATE OF UTAH
Filed January 30, 2020
2020 UT 2
On Certification from the Utah Court of Appeals. Heard October 8, 2019. Fourth District, Nephi. The Honorable Anthony L. Howell. No. 161600073.
Attorneys:
Sean D. Reyes, Att‘y Gen., William M. Hains, Asst. Solic. Gen., Salt Lake City, for appellee
Douglas J. Thompson, Provo, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.
Introduction
¶ 1 Paul Lambert Flora pled guilty to felony DUI. Before sentencing, he timely moved to withdraw his plea under
Background
¶ 2 On May 16, 2016, a Nephi City police officer pulled Mr. Flora over after receiving a call about a disturbance at a nearby Flying J convenience store. According to the caller, Mr. Flora knocked over several cigarette ashtrays in front of the Flying J and then sped away in a red Ford Ranger with nо
¶ 3 Because Mr. Flora received two prior DUI convictions in the past ten years, the State charged him with felony DUI. It also charged him with disorderly conduct, public intoxication, failure to display license plates, and driving without a license. After appointing Mr. Flora a public defender, the district court held a preliminary hearing on June 14, 2016. Then, on November 10, 2016, Mr. Flora pled guilty to felony DUI and the State dropped the other charges.
¶ 4 Mr. Flora‘s initial public defender withdrew on December 29, 2016, after Juab County awarded its indigent-defense contract to a new law firm. He was appointed new counsel on January 4, 2017. On February 7, 2017, Mr. Flora moved to withdraw his guilty plea. He argued thаt his plea was not knowing and voluntary, because a mix-up with his court dates forced him to either plead guilty or go to trial and lose. The district court denied this motion on February 21, 2017, and sentenced Mr. Flora on February 28, 2017.
¶ 5 Mr. Flora now appeals the denial of his plea-withdrawal motion. On appeal, he asserts two new arguments that he did not present to the district court. Both arguments rest on the premise that his behavior throughout the proceedings should have alerted the district court and trial counsel to the possibility that he was not competent to plead guilty. For example, he asserts that in both his preliminary hearing and plea hearing, he made several statements that raise doubts about his competency. At his plea hearing, for instance, when the court asked him if he had reviewed his plea agreement, Mr. Flora responded by saying:
Yeah. You know, I— yeah, I don‘t feel like the 0.08 fits everybody. Some people know how to drink, some people don‘t. . . I actually read a chunk of this book last night where one of the people that—these guys that bend all the telescopes to understand astronomy and physics, the way we look at the universe now. And the one guy said kind of a whiskey that he‘s always packing around with him. Just those kind of people.
He also stated that he “woke up with а brain injury on January 21st 2015, homeless and unemployed due to that event.”
¶ 6 Additionally, following Mr. Flora‘s plea, the district court ordered a presentence report from Adult Probation and Parole (AP&P). This report also contained several strange statements. For example, Mr. Flora began his presentence packet by writing, “None of your psychological wisdom can Trump mine.” And when asked to write a brief history of his life for the report, Mr. Flora wrote, “I‘ve never lived in or grown in a permanent location. There are about 500 contacts on my phone, including the White House, FBI, Attorney General, and businesses that I don‘t have to look up ever again.” An AP&P investigator also noted in the report that Mr. Flora “struggled to track [their] conversation” and recommended that Mr. Flora obtain a mental health evaluation.
¶ 7 Given this behavior, Mr. Flora argues that instead of dеnying his plea-withdrawal motion, the district court should have sua sponte ordered a competency hearing, and that its failure to do so constitutes plain error. He also argues that his attorneys at the district-court level provided ineffective assistance because they, too, knew about his behavior and did not investigate his competency.3
¶ 8 The parties briefed and argued this matter before the court of appeals, which then certified the matter to us under
Standard of Review
¶ 9 Under the doctrine of preservation, “[w]hen a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.”4 “This court has recognized three distinct exceptions to preservation: plain error, ineffective assistance of counsel, and exceptional circumstances.”5 A party seeking review of an unpreserved issue “must establish the applicability of one of these exceptions to persuade an appellate court to reach that issue.”6
¶ 10 Because Mr. Flora did not raise his competency-related arguments in the district court, he asks us to reach them under the plain-error and ineffective-assistance-of-counsel preservation exceptions. To establish plain error, a defendant must show (1) “an error exists,” (2) “the error should have been obvious to the trial court,” and (3) “the error is harmful.”7 And to establish ineffective assistance of counsel, a defendant must show (1) “that counsel‘s performance was objеctively deficient” and (2) “a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial.”8
¶ 11 But as we explain below, Mr. Flora cannot invoke these exceptions when appealing the denial of a motion to withdraw a guilty plea. The Plea Withdrawal Statute has its own preservation rule that is separate from the common-law preservation rule, and to which our recognized exceptions do not apply.
Analysis
¶ 12 The Plea Withdrawal Statute allows defendants to withdraw a guilty plea only if they (1) show that their plea “was not knowingly and voluntarily made” and (2) make this showing “by motion before sentence is announced.”9 “Any challenge” to a guilty plea that does not meet these requirements must be pursued under the Post-Conviction Remedies Act (PCRA).10 In State v. Rettig and State v. Allgier, we held that these requirements crеate a rule of preservation that is distinct from our traditional preservation doctrine.11 And in Rettig, we also held that this statute-based rule is not subject to the recognized preservation exceptions, which are grounded in the common law.12 Consequently, we concluded that the defendants in those cases—who both failed to comply with the Plea Withdrawal Statute because they moved to withdraw their pleas after sentencing—could not bring unpreserved claims based on the ineffective-assistance-of-counsel exception.13
¶ 13 Mr. Flora argues that Rettig and Allgier are inapplicable to his case because he complied with the statute and made his plea-withdrawal request before sentencing. He claims that “[n]othing in this [c]ourt‘s opinions, or in the language of the statute, even remotely suggests that the [statute‘s] preservation requirement goes beyond the need to preservе a challenge to the validity of the guilty plea.” To the contrary, our Rettig and Allgier opinions and the Plea
I. Our Common-Law Preservation Exceptions Do Not Apply to the Plea Withdrawal Statute‘s Distinct Preservation Rule
¶ 14 Mr. Flora argues that defendants who move to withdraw their pleas before sentencing can raise unpreserved claims on appeal if those claims fall within a common-law preservation exception. When Mr. Flora appealed the district court‘s denial of his timely motion to withdraw, he raised two new challenges to his plea under the plain-error and ineffective-assistance-of-counsel exceptions. He argues that the Plea Withdrawal Statute‘s preservation rule does not prohibit him from raising these challenges, because he satisfied the rule by moving to withdraw before sentencing. But according to our decisions in Rettig and Allgier, the statute‘s preservation rule bars appellate review of all unpreserved claims, even where a defendant has raised other claims in a timely plea-withdrawal motion.
¶ 15 For nearly two decades, we have held that the Plea Withdrawal Statute “imposes a procedural bar” on a defendant‘s ability to appeal the denial of a motion to withdraw a guilty plea made after sentencing.14 We clarified in Allgier that the statute “does not allow defendants to work around [this procedural bar] through the exceptions to preservation.”15 And in Rettig, we further explained that the statute “establishes a standard of preservation” and “imposes a strict sanction of waiver that is not subject to any common-law exceptions.”16 In other words, under Rettig and Allgier, the Plea Withdrawal Statutе‘s preservation rule bars appellate courts from considering any new issues raised on appeal of a motion to withdraw made after sentencing.
¶ 16 Mr. Flora argues that he satisfied the statute‘s preservation rule because he moved to withdraw before sentencing. He claims this “completely distinguishes” his case from Rettig and Allgier, and allows him to raise new claims on appeal based on our recognized preservatiоn exceptions. According to Mr. Flora, defendants need not preserve individual challenges based on plain error, exceptional circumstances, or ineffective assistance of counsel as long as they preserve the overall challenge that their plea was not knowing and voluntary, which they do by moving to withdraw “before sentence is announced.”17
¶ 17 This argument is inconsistent with our preservation doctrine. In order to “properly preserve an issue at the district court, the following must take place: (1) the issue must be raised in a timely fashion; (2)
¶ 18 Mr. Flora‘s unpreserved claims center on whether the district court and his attorneys failed to recognize his alleged incompetency. He did not present these claims to the district court. The only claim he presented to the district court was that he was “more or less forced” to plead guilty due to a “mix-up” with his court dates. So, on appeal, he may raise only new or controlling legal authority “that directly bears upon” this alleged mix-up.21 But raising this issue—which has nothing to do with competency—did not preserve the plain-error and ineffective-assistance-of-counsel challenges Mr. Flora now brings for the first time on appeal. And while he could likely raise these challenges under the common-law preservation rule, the Plea Withdrawal Statute‘s preservation rule bars him from doing so here.
¶ 19 In sum, the fact that Mr. Flora moved to withdraw his plea before sentencing does not meaningfully distinguish his case from Rettig and Allgier. Indeed, much like the defendants in those cases, Mr. Flora failed to present to the district court any arguments related to the unpreserved challenges he now raises on appeal. And this failure means that he—just like the Rettig and Allgier defendants—cannot now bring these challenges, regardless of their basis in our recognized preservation exceptions. Our analysis of the Plea Withdrawal Statute in Rettig and Allgier strongly indicates that the statute‘s unique preservation rule is never subject to the common-law preservation exceptions, regardless of whether a defendant files a plea-withdrawal motion before or after sentencing.22 And the statute‘s plain language confirms this conclusion.
II. The Plea Withdrawal Statute‘s Plain Language Requires Mr. Flora to Pursue His Unpreservеd Claims Under the PCRA
¶ 20 The Plea Withdrawal Statute‘s plain language also bars Mr. Flora‘s unpreserved claims. Subsection (2)(b) of the statute states that defendants “shall” make a “request to withdraw a plea of guilty . . . by motion before sentence is announced.”23 And subsection (2)(c) mandates that “[a]ny challenge to a guilty plea not made” before sentencing “shall be pursued” under the PCRA.24
¶ 21 When conducting statutory interpretation, we focus on the statutе‘s plain language because it is the “best evidence” of the legislature‘s intent.25 We also “presume that the legislature used each word advisedly and read each term according to its ordinary and accepted meaning.”26 We likewise presume that “the expression of one [term]
¶ 22 The State argues that the phrase “[a]ny challеnge” in subsection (2)(c) “necessarily refers to the specific legal ground[s] . . . upon which a defendant attacks the legality” of his or her plea. And they claim that, by modifying “challenge” with the adjective “any,” “the legislature necessarily recognized that a defendant might raise any number” of specific plea challenges. So, according to the State, simply filing a timely plea-withdrawal motion does not preserve all of а defendant‘s potential plea challenges. Rather, it preserves only those challenges specifically raised in the motion.
¶ 23 We agree with the State. We read the statute as using “any challenge” in subsection (2)(c) to the exclusion of the phrase “request to withdraw” in subsection (2)(b). Accordingly, we conclude that “any challenge” refers to the specific legal grounds raised within a defendant‘s plea-withdrawal request. This is the interpretation most consistent with our principles of statutory construction, as it gives distinct effect to the phrases “request to withdraw” and “any challenge.” Had the legislature intended “any challenge” to refer to a defendant‘s motion to withdraw in its entirety, it would have repeated the term “request to withdraw” in subsection (2)(c) or said “any such request.” But it did not. Under the current interpretation, subsection (2)(c) requires defendants who did not present a specific challenge to the district court to pursue that challenge under the PCRA.
¶ 24 Mr. Flora argues that under this interpretation some claims “cannot be appealed at all“—a result that should give us “pause about the adequacy of [defendants‘] constitutional right to appeal.” He argues he cannot meaningfully pursue his unpreserved arguments under the PCRA, because the PCRA prohibits granting relief “upon any ground that . . . could have been but was not raised at trial or on appeal.”29 And because his alleged incompetency could have been but was not raised in his plea-withdrawal motion, he argues that he cannot invoke it as a basis for relief under the PCRA. So according to Mr. Flora, if the issue of his competency cannot be raised under the common-law preservation exceptions, it “cannot be raised at all.”
¶ 25 We disagreе with Mr. Flora for three reasons. First, it is not true that requiring strict compliance with subsection (2)(b) of the Plea Withdrawal Statute will prevent the appeal of certain claims. Nothing in the statute, or in Rettig and Allgier for that matter, prevents defendants from appealing claims of incompetency or any other issue as long as they include these claims in their initial plea-withdrawal motions. Second, if a defendant fails to include a claim due to inеffective assistance of counsel, as Mr. Flora alleges happened here, the PCRA will not necessarily prevent him or her from seeking relief.30
¶ 26 Finally, the obstacles Mr. Flora describes already exist for defendants who miss the Plea Withdrawal Statute‘s deadline and move to withdraw their pleas after sentencing. Bearing this in mind, we see no principled reason why the common-law preservation exceptions should apрly to unpreserved challenges raised on appeal of plea-withdrawal motions filed before sentencing, but not to challenges raised on appeal of motions filed after sentencing. The Plea Withdrawal Statute precludes both types of arguments because they are made after “sentence is announced.”31 And as we acknowledged in Rettig, the statute “speaks directly and comprehensively” to the consequence
Conclusion
¶ 27 Mr. Flora did not raisе the issue of his competency with the district court. As a result, the Plea Withdrawal Statute‘s plain language requires him to pursue this issue under the PCRA. And while Mr. Flora‘s competency-related arguments are based on our common-law preservation exceptions, Rettig and Allgier strongly indicates that these exceptions do not apply to the Plea Withdrawal Statute‘s distinct preservation rule. Because the statute prevents us from considering Mr. Flоra‘s unpreserved arguments, we dismiss his appeal and deny his motion to remand under